Exhibit 10.33
Technical Services Agreement
dated November 12, 2001
between
Smart Chip Technologies, LLC ("SCTN")
and
RTS Networks Group PLC ("RTSE" or "the Company")
CONTENTS
Section Description Page
1 TERM 1
2 SERVICES TO BE PROVIDED 1
3 PAYMENT TERMS 2
4 TRAVEL ACCOMMODATIONS AND PLACE OF WORK 3
5 SCOPE OF WORK AND MANAGEMENT )OF PROJECT 3
6 TERMINATION OF AGREEMENT 3
7 CONFIDENTIALITY 3
8 NON-SOLICITATION 6
9 INTELLECTUAL PROPERTY OWNERSHIP 6
10 NOTICES 6
11 GENERAL 7
12 GOVERNING LAW 7
THIS AGREEMENT is made on November 12, 2001
BETWEEN
1. SCTN, a xxxxx owned subsidiary of Schimatic Cash Transactions
Xxxxxxx.xxx, Inc. ("Schimatic") whose principal place of business is at
00000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
; and
2. RTSE, a company incorporated in the United Kingdom whose principal
place of business is
at 00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0xX
INTRODUCTION
SCTN desires to retain the services of RTSE and RTSE desires to provide services
as described below to SCTN under the terms and conditions of this agreement (the
"Agreement").
SCTN contemplates that certain funding arrangement may be made with UK
investors, the proceeds of which will be specifically for the purpose of funding
services provided by RTSE (the "UK Funding").
THE PARTIES AGREE as follows:
1. TERM
1.1 This Agreement shall commence on the date of this document
("Effective Date") and last for a maximum period of eight
months (the "Term") unless earlier terminated pursuant to the
terms of this Agreement.
2. SERVICES TO BE PROVIDED
2.1 The RTSE shall provide the services of individuals, to work on
the project known as the `Loyalty Central Build-out', as more
fully described in Schedule 1 as specified by SCTN.
3. PAYMENT TERMS
3.1 RTSE has agreed to apply a reduced hourly contract rate for
services provided during the period until and for work
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performed by February 28, 2002, but only on condition that all
amounts billed for those periods under this agreement are paid
in full no later than 60 days from the date of billing.
Billing rates (without regard to any discount) for services
provided by type of consultant are shown on Schedule 2 of this
agreement. The reduced hourly contract rates will be at 25% of
the full billing rates.
3.2 Billing will be done on the basis of hours worked and will
include only direct hours worked. The billing rates include
the burdens for overhead and general and administrative costs.
No hours associated with overhead or general and
administrative costs will be billed as direct hours worked.
3.3 In the event that payments for November and December are not
paid in full as completed in the timeframe defined above, then
RTSE will apply full rates for the services that will have
been rendered during November and December as well as any
future services.
3.4 In addition, RTSE has agreed for payment of services to be
deferred until SCTN has obtained funding that it is currently
seeking, on condition that this funding is acquired by
December 15th 2001.
3.5 If SCTN is successful in obtaining additional funding,
including the UK funding, SCTN commits to immediate payment of
all service rendered and billed, at the discounted rate.
3.6 If SCTN is successful in placing the UK funding, SCTN will
agree to negotiate a basis upon which it would pre pay
reasonably expected expenses.
3.7 SCTN will agree to provide for or pay upon presentation of
appropriate invoices and support the costs described in
paragraph 4.1 below.
3.8 In the event the UK funding is placed, SCTN will be entitled
to utilize portions of the UK funding not to exceed $20,000 to
offset amounts paid or due pursuant to paragraph 3.5 above.
4. TRAVEL AND ACCOMMODATION, AND PLACE OF WORK
4.1 By this agreement, SCTN commits to cover all operational,
travel and accommodation expenses for the individuals that are
providing the services, including all software, hardware or
other tools that might be required for the delivery of the
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service. RTSE will obtain approval for all expenditures
aggregating above $500 before incurring such expenditures.
4.2 The principal place of work for the individuals concerned is
Salt Lake City, unless otherwise specified in Schedule 1
below.
5. SCOPE OF WORK AND MANAGEMENT OF THE PROJECT
5.1 The general scope will include the build-out of Loyalty
Central and XxxxxxxXxxxxxx.xxx, using J2EE EJB and WebSphere
technology.
5.2 SCTN will define the details of the scope of work and the
objectives of the project.
5.3 Consequently, responsibility for management of the project and
achievement of these objectives lies with SCTN. RTSE will
provide assistance, but is not responsible for schedules,
deadlines or performance.
6. TERMINATION OF THE AGREEMENT
6.1 Should SCTN terminate this Agreement, SCTN shall pay RTSE for
any and all work performed or materials ordered or acquired
for SCTN (upon SCTN's authorisation) by RTSE prior to
termination; provided, that RTSE shall attempt to mitigate
SCTN's obligation by using its commercially reasonable efforts
to cancel the delivery of any materials ordered but not yet
received prior to termination.
6.2 If at any time RTSE reasonably determines that SCTN will be
not successful in obtaining funding for its ongoing
operations, RTSE will have the right to terminate this
agreement, and to request immediate payment of the services
rendered,; provided however that, until such time as RTSE has
performed work and billed according to this agreement amounts
in excess of the amounts previously paid including amounts
which may have been paid in advance by SCTN to RTSE under this
agreement, RTSE shall not have the right to cancel this
agreement. RTSE will have the right to terminate this
agreement at any time in the event that amounts due and
payable by SCTN are not paid according to the terms of this
agreement.
6.3 Immediately upon expiration or termination of this Agreement
or termination for any reason, RTSE, without additional cost
to SCTN, shall provide all reasonable assistance and devote
RTSE's best efforts to returning to SCTN or its designees any
and all data, records and documentation belonging to or
provided by SCTN.
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6.4 The provisions of clause 7 shall survive any termination of
this Agreement.
7. CONFIDENTIALITY
7.1 During the term of this Agreement, and for a period of two
years thereafter, RTSE shall maintain in strict confidence,
and shall ensure that the RTSE's Representatives shall
maintain in strict confidence, and shall use and disclose only
as authorised by SCTN, all confidential information identified
to RTSE and the RTSE's Representatives, whether or not
authorised by SCTN, verbally or in writing, or material
information which a reasonable person would assume to be
confidential given in the context of its disclosure, that RTSE
receives in connection with RTSE's performance under this
Agreement, either before or after the date of this Agreement.
Such confidential information shall include, but not be
limited to, information concerning SCTN and its customer's
business operations, employees, finances, acquisitions,
research and development, products and production, system
design, customers, marketing, software, inventions, processes,
designs, drawings and engineering, configurations, sales and
pricing that is disclosed by or on behalf of either party to
the other, or is developed during the working relationship,
and any information, technical data or know-how that contain
or reflect any of the foregoing, whether prepared by SCTN or
by any other person ("Confidential Information").
7.2 RTSE also recognises that SCTN has received and in the future
will receive from third parties their confidential or
proprietary information subject to a duty on SCTN's part to
maintain the confidentiality of such information and to use it
only for certain limited purposes ("Third Party Confidential
Information"). RTSE agrees that RTSE owes SCTN and such third
parties, during the term of this Agreement and for a period of
two years thereafter, a duty to hold all Confidential
Information and Third Party Confidential Information in the
strictest confidence and shall ensure that RTSE's
Representatives shall hold in the strictest confidence and not
to disclose it to any person, firm, or corporation (except as
necessary in carrying out RTSE's work for SCTN in a manner
consistent with SCTN's agreement with such third party) or to
use it for the benefit of anyone other than for SCTN or such
third party (consistent with SCTN's agreement with such third
party).
7.3 The restrictions in this clause 7 shall not be construed to
apply to:
7.3.1 information generally available to the public;
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7.3.2 information generally released by SCTN without
restriction and which a reasonable person would not
assume to be confidential;
7.3.3 information independently developed by RTSE or its
personnel without reliance in any way on confidential
information of SCTN or acquired from a third party
without similar restriction, without breach of this
Agreement, and with no reason to believe the third
party has breached any similar confidentiality
agreement; or
7.3.4 information that SCTN agrees in writing is approved
for the use and disclosure of RTSE or RTSE's
Representatives without restriction.
7.4 Notwithstanding the foregoing restrictions, RTSE may disclose
any information to the extent required by an order of any
court or other governmental authority but only after SCTN has
been notified in writing sufficiently in advance of the date
of compliance to permit SCTN to seek protection for such
information in connection with the disclosure.
7.5 All Confidential Information in whatever form shall at all
times remain the property of SCTN. Upon the written request of
SCTN, RTSE shall deliver promptly to SCTN all documents,
memoranda, notes, computer programs, storage media, materials
and other tangible property ("Information Media") that contain
Confidential Information or Third Party Confidential
Information, and shall not retain any copies, extracts or
other reproductions or evidence in whole or in part of such
information. All such Confidential Information and Third Party
Confidential Information stored on computer disks or other
Information Media that cannot be delivered to SCTN (because,
for example, such media also contain information not relating
to the party) shall be destroyed promptly, and such
destruction shall be certified in writing to the other party
by an authorised officer who supervised such destruction.
8. NON-SOLICITATION
8.1 For the term of this Agreement and for the period of six (6)
months thereafter without the prior written consent of the
other Party, neither Party shall actively solicit or entice
away or seek to attempt to entice away from the employment of
the other Party any person(s) employed or any person(s) who
have been so employed in the preceding six (6) months by such
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other Party. For the avoidance of doubt, this clause shall not
apply to unsolicited responses by employees to general
recruitment advertising.
9. INTELLECTUAL PROPERTY OWNERSHIP
9.1 Subject to clause 7.2 of this Agreement, SCTN shall
exclusively own all intellectual property rights including but
not limited to copyright, patents, trade marks, service marks,
registered designs, applications for any of those rights,
trade and business names (including internet domain names and
email address names), unregistered trade marks and service
marks, know-how, database rights, rights in designs and
inventions; and rights of the same or similar effect or nature
in each case in any jurisdiction ("Intellectual Property
Rights") that have been created or have arisen pursuant to the
provision of the Services. To the extent that such title will
vest in SCTN, RTSE shall execute or ensure that RTSE's
Representatives shall execute any documents necessary to make
a full, irrevocable assignment, in perpetuity, to SCTN of any
and all the Intellectual Property Rights associated with such
Services developed or prepared by RTSE or RTSE's
Representatives pursuant to this Agreement.
9.2 RTSE shall continue to own all Intellectual Property Rights
that it owned prior to the date of this Agreement, but to the
extent that SCTN requires use of such Intellectual Property
Rights to fully enjoy and use the Services, RTSE grants to
SCTN a perpetual, irrevocable worldwide licence to use such
Intellectual Property Rights.
10. NOTICES
Whenever notice is required to be given under the terms of this
Agreement, such notice shall be in writing and delivered by hand or by
registered or certified mail, postage prepaid addressed as follows:
If to SCTN at: If to RTSE at:
Smart Chip Technologies, LLC
00000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
or to such other address as either party shall have specified for
itself from time to time to the other party in writing. All such
notices shall be conclusively deemed to be received and shall be
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effective, if sent by hand delivery, upon receipt, or if sent by
registered or certified mail, upon receipt.
11. GENERAL
11.1 If any term or other provision of this Agreement, or any
application thereof to any circumstances is invalid, illegal
or incapable of being enforced by any rule of law in whole or
in part, such provision or application shall to that extent be
severable and shall not effect other provisions or
applications of this Agreement.
11.2 This Agreement and any addenda attached hereto contains the
entire understanding of the parties hereto with respect to its
subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between them as to such
subject matter. This clause does not apply to any fraudulent
misrepresentations or statements.
11.3 No provision of this Agreement shall be taken as excluding or
restricting or attempting to exclude or restrict any liability
for death or personal injury arising from either party's
negligence.
11.4 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of
which together shall constitute one instrument.
11.5 Under this Agreement, unless the context otherwise requires,
words in the singular number or in the plural number shall
each include the singular number and the plural number, and
the use of any gender shall include all genders. The headings
in this Agreement are for reference purpose only and shall not
limit or otherwise affect the meaning or interpretation of
this Agreement.
11.6 Each party hereto shall do and perform or cause to be done and
performed all further acts and things and shall execute and
deliver all other agreements, certificates, instruments, and
documents as any other party hereto reasonably may request in
order to carry out the intent and accomplish the purposes of
this Agreement and the consummation of the transactions
contemplated hereby.
11.7 This Agreement may not be amended, nor may any provision
hereof be modified or waived, except by an instrument in
writing duly signed by the party to be charged.
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12. GOVERNING LAW
This Agreement and the rights and obligations of the parties hereto
shall be construed and enforced in accordance with and governed by the
laws of California in the USA, and both parties submit themselves to
the exclusive jurisdiction of said law.
SIGNED by a duly authorised representative for and on )
behalf of SCTN )
Signature: /s/ Xxx X. Xxxxxxxxxx
Name: Xxx X. Xxxxxxxxxx
Title: Senior Vice President
Date: November 12, 2001
SIGNED by a duly authorised representative for and on )
behalf of RTS NetWorks Group PLC )
Signature: /s/ Xxxx Xxxxxxxxx
Name: Chief Financial Officer
Title: November 12th, 2001
Date:
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Schedule 1 - The Services
1. Build Services
1. The build-out of Loyalty Central and XxxxxxxXxxxxxx.xxx, using
J2EE EJB and WebSphere technology, per the specifications as
contained in the following documents: Loyalty Central
Build-out Specifications.
2. Loyalty Central Build-out by Release Specifications.
3. Global Platform Specifications Documents
4. EMV Specifications Documents
5. Solstice Solution Specifications.
6. Scotia Bank Functional Requirements Specifications
Schedule 2 - Designated Billing Rates
Type of Consultant Billing Rate (per hour)
------------------ -----------------------
Project Manager $250.00
Senior Developer 150.00
Junior Developer 112.50
Senior Designer 150.00
Junior Designer 112.50
